HomeMy WebLinkAbout93-0413 Criminal COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: 413 CRIMINAL 1993
v. : CHARGES: (A) DUI
: (c) DUS
DAVID M. KYLER : AFFIANT: CPL. JAMES ADAMS
OTN: E074644-3
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., August 3, 1994.
In this case, Defendant has appealed to the Superior Court
from a judgment of sentence imposed by the writer of this Opinion,
following Defendant's pleas of guilty to driving under the
influence~ and driving under suspension (d.u.i. related).2 The main
issue on appeal is whether the Court erred in sentencing Defendant
as a fourth offender for mandatory sentencing purposes under the
driving under the influence statute,3 where an erroneous assumption
existed at the time the plea was entered that the violation in
question was a third offense for mandatory sentencing purposes and
where Defendant refused the Court's offer to permit him to withdraw
the plea because of the error.
~ Act of June 17, 1976, P.L. 162, ~1, as amended, 75 Pa. C.S.
~3731 (1994 Supp.).
2 Act of June 17, 1976, P.L. 162, ~1, as amended, 75 Pa. C.S.
~1543(b) (1994 Supp.). ~
3 Act of June 17, 1976, P.L. 162, ~1, as amended, 75 Pa. C.S.
~3731(e) (1994 Supp.).
413 Criminal 1993
Statement of Facts
As a result of an incident in Cumberland County on July 3,
1992, Defendant was charged with driving under the Influence,4
unsworn falsification to authorities,s and driving under suspension
(d.u.i. related).6 On June 8, 1993, he pled guilty to driving
under the influence and driving under suspension (d.u.i. related),
in full satisfaction of the charges.7
During the course of the guilty plea colloquy, the assistant
district attorney in attendance stated that "[t]his is a third
offense for mandatory sentencing purposes, a fifth offense
overall.''8 Defendant's counsel represented to the Court that
we've also gone through [Defendant's] driving record and
verified that this is a third offense. This did happen
in July of '92. At that time it was a mandatory third
offense.9
4 Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S.
§3731 (1994 Supp.).
$ Act of December 6, 1976, P.L. 1482, Sl, 18 Pa. C.S. S4904.
6 Act of June 17, 1976, P.L. 162, ~1, as amended, 75 Pa. C.S.
~1543(b) (1994 Supp.); see Guilty Plea Colloquy, June 8, 1993, N.T.
2 (Commonwealth's Exhibit 5, Hearing, June 2, 1994).
7 Guilty Plea Colloquy, June 8, 1993, N.T. 2-8
(Commonwealth's Exhibit 5, Hearing, June 2, 1994).
~ Id., N.T. 2.
9 Id., N.T. 3-4. The response of the assistant district
attorney was, "That is correct. That's what I said." Id., N.T. 4.
2
413 Criminal 1993
Accordingly, the Court advised Defendant with respect to the
penalty for driving under the influence as follows:
THE COURT: Secondly, do you understand that driving
under the influence is a misdemeanor of the second degree
carrying a possible prison sentence of two years and a
possible fine of $5,000.00, and in the case of a third
offense for mandatory sentencing purposes, a mandatory
minimum sentence of 90 days"
THE DEFENDANT: Yes, your Honor.~°
The Court further advised Defendant as to the penalty for
driving under suspension (d.u.i. related) and of the likelihood
that the sentences imposed would be consecutive:
THE COURT: Do you understand further that driving
under suspension is a summary offense which, because it's
DUI related in this case, carries a mandatory minimum
sentence of 90 days and a mandatory fine of $1,000.007
THE DEFENDANT: Yes, your Honor.
THE COURT: Do you understand that in all likelihood
those two sentences would be consecutive as opposed to
concurrent?
THE DEFENDANT: Yes.~
At the conclusion of the colloquy, this Order was entered:
AND NOW, this 8th day of June, 1993, the Defendant,
David M. Kyler, now appearing in court for a pretrial
conference with the Public Defender, Ron Turo, Esquire,
and having tendered pleas of guilty to Count A, Driving
Under the Influence, a third offense for mandatory
sentencing purposes and a fifth offense overall, and to
Count C, Driving Under Suspension (DUI related), carrying
a mandatory minimum prison sentence of 90 days and a
mandatory $1,000.00 fine, and the Defendant having been
Id., N.T. 4.
Id., N.T. 4-5.
413 Criminal 1993
advised that the sentences will, in all likelihood, be
consecutive, the Defendant's pleas of guilty are
accepted. Sentence is deferred pending receipt by the
Court of a short pre-sentence investigation report.~2
The presentence investigation revealed that the driving under
the influence violation was a fourth offense for mandatory
sentencing purposes rather than a third one.~3 At the time set for
sentencing, the Commonwealth argued that any sentence imposed on
the driving under the influence violation should be in accordance
with the mandatory minimum sentence applicable to a fourth offense.
Defendant insisted that he was entitled to be sentenced in
accordance with the mandatory minimum sentence applicable to a
third offense, because he had been permitted pursuant to an
agreement with the Commonwealth to plead guilty on that basis; he
declined to ask that his plea be withdrawn. The Court entered this
Order:
AND NOW, this 15th day of February, 1994, the
Defendant, David M. Kyler, now appearing for sentence
with the Public Defender, Ron Turo, Esquire, and an issue
having arisen as to whether the plea bargain in this case
~2 Order of Court, June 8, 1993.
~3 Commonwealth's Exhibit 3, Hearing, June 2, 1994.
Defendant's record with respect to driving under the influence
charges is as follows:
(1) ARD entry August 2, 1984 (offense date 2/18/84);
(2) Conviction November 3, 1986 (offense date 8/2/86);
(3) Conviction August 27, 1991 (offense date 2/24/91);
(4) Conviction June 2, 1992 (offense date 10/2/91); and
(5) Conviction (present offense) June 8, 1993 (offense date
7/3/92).
Commonwealth's Exhibit 1, Hearing, June 2, 1994; see also
Commonwealth's Exhibits 5-6, Hearing, June 2, 1994.
4
413 Criminal 1993
included a knowing agreement on the part of the District
Attorney's office that the offense would be treated as a
third offense for mandatory sentencing purposes,
notwithstanding the fact that it was, in fact, a fourth
offense for mandatory sentencing purposes, and the
Defendant having indicated through counsel that he is
unwilling to move to withdraw his plea based upon the
alleged misunderstanding and maintains that he should be
sentenced as a third offender for mandatory sentencing
purposes because that was the plea bargain, sentence in
this matter is deferred, the stenographer is requested to
prepare the transcript of the guilty plea colloquy, and
counsel are requested to list this matter for hearing and
argument on the legal issue involved.TM
A hearing was held on the matter on June 2, 1994. No
testimony was presented on behalf of Defendant, and an examination
of Defendant's PennDot driving record suggested that this document
was the source of the misunderstanding as to his prior history.
Specifically, the PennDot driving record employed the term
"conviction date," without indicating that this did not mean date
of plea (or verdict), but rather date of sentence. As a result, a
1991 offense to which Defendant had pled guilty, or of which he had
been found guilty, prior to the occurrence of the present offense,
bore a "conviction date" subsequent to the occurrence of the
present offense.~5
~4 Order of Court, February 15, 1994.,
~5 The present violation date was July 3, 1992. See note 13
supra; Guilty Plea Colloquy, June 8, 1993 (Commonwealth's Exhibit
2, Hearing, June 2, 1994), at 2. Defendant pled guilty to, or was
found guilty of, the prior offense on June 2, 1992. See note 13
supra. However, the driving record showed a "conviction date" for
the prior offense of August 25, 1992. Commonwealth's Exhibit 5,
Hearing, June 2, 1994.
413 Criminal 1993
The preexistence of a conviction on a past offense as of the
time of a new offense is a prerequisite to sentence enhancement
under the drunk driving mandatory sentencing law.16 "Conviction"
in this context means a guilty plea or guilty verdict, as opposed
17
to a sentence.18 Thus, an error in utilizing Defendant's driving
record containing conviction dates based on sentencing for purposes
of mandatory sentencing would be critical where, as here, the
proper date preceded the new offense and the sentencing date
succeeded it.
In addition to the introduction of the document comprising
Defendant's PennDot driving record, the Commonwealth presented
testimony of an assistant district attorney in Cumberland County to
the effect that it was not her office's policy to plea bargain in
drunk driving cases by manipulating the mandatory aspects of
sentencing. Further, it was stipulated that the assistant district
attorney who handled Defendant's case, if called, would have
testified that she did not recall the details of Defendant's case,
~ Commonwealth v. Eck, 411 Pa. Super. 465, 601 A.2d 1261
(1992).
~7 Or A.R.D. acceptance. Commonwealth v. Kimmel, 523 Pa. 107,
565 A.2d 426 (1989).
~ Commonwealth v. Kimmel, 523 Pa. 107, 565 A.2d 426 (1989).
6
413 Criminal 1993
but that she would in no event have waived a mandatory sentence
applicable to his record.~9
Based upon the evidence presented at the hearing, and
believing further that neither counsel at the time of Defendant's
guilty plea would have knowingly misled the Court as to the number
of the offense being pled to for mandatory sentencing purposes, the
Court advised Defendant (1) that it intended to find that the
third-offense assumption at the time of the plea had been a mere
mistake, (2) that the Court would permit Defendant to withdraw his
plea if he wished, and (3) that if he chose not to withdraw his
plea he would be sentenced as a fourth offender for mandatory
sentencing purposes. He chose not to withdraw his plea, and the
following Order was entered:
AND NOW, this 2nd day of June, 1994, the Defendant,
David M. Kyler, now appearing in Court with the Public
Defender, Ron Turo, Esquire, and a hearing having been
held on the circumstances surrounding the entry of his
guilty plea on June 8, 1993, wherein it was represented
to the Court that the offense being pled to was a third
offense of Driving under the Influence for mandatory
sentencing purposes, the Court finds that that
representation was the result of an error on the part of
the counsel who were involved, and that, in fact, the
offense is a fourth offense for mandatory sentencing
purposes; consequently, the Defendant has been offered
the opportunity to withdraw his plea of guilty and go to
trial on the charge on the basis of the plea's having
been entered pursuant to a misunderstanding, or to be
sentenced on the charge which was pled to, said offense
being treated as a fourth offense for mandatory
~9 This assistant district attorney had left the District
Attorney's Office and moved to Florida. See N T. 5 Hearing,
February 15, 1994. ' '
7
413 Criminal 1993
sentencing purposes, and the Defendant having chosen not
to move to withdraw the plea, he will be sentenced for
Driving under the Influence on the basis of a fourth
offense for mandatory sentencing purposes.20
Thereafter, sentence was imposed as follows:
AND NOW, this 2nd day of June, 1994, the Defendant,
David M. Kyler, now appearing for sentence with the
Public Defender, Ron Turo, Esquire, and having previously
entered a plea of guilty to Driving under the Influence,
which is a fourth offense for mandatory sentencing
purposes, and Driving under Suspension (D.U.I. related),
and the Court being in receipt of a pre-sentence
investigation report, upon which it relies, and following
a hearing at which the Defendant declined the opportunity
to withdraw his plea of guilty because the guilty plea
colloquy indicated that the driving under the influence
offense was a third offense for mandatory sentencing
purposes, the sentence of the Court is as follows:
At Count A, Driving under the Influence, a fourth
offense for mandatory sentencing purposes, the Defendant
is sentenced to pay the costs of prosecution, a fine of
$300.00, a $10.00 Emergency Medical Services Fund
Assessment, and a $300.00 CAT Fund Assessment, and to
undergo imprisonment in a state correctional institution
for a period of not less than one year nor more than two
years.
The Cumberland County Sheriff is directed not to
transport the Defendant to a state prison without further
order of Court.
Work release is authorized for the Defendant while
he is at the Cumberland County Prison. Prior to
obtaining his Pennsylvania operating privileges the
Defendant shall pay all Court-imposed costs and fines and
pay for and successfully complete an alcohol treatment
program.
At Count C, Driving under Suspension (D.U.I.
related), the Defendant is sentenced to pay the costs of
prosecution, a fine of $1,000.00, a $30.00 CAT Fund
Assessment, and a $10.00 Emergency Medical Services Fund
Order of Court, June 2, 1994.
8
413 Criminal 1993
Assessment, and to undergo imprisonment in the Cumberland
County Prison for a period of 90 days, said sentence to
run consecutive to the sentence imposed at Count A. Work
release is authorized for the Defendant with respect to
this offense.
Service of this sentence shall be deferred on the
representation of defense counsel that an appeal will be
filed. The Defendant is released on his own
recognizance.2~
On June 7, 1994, Defendant filed a motion for modification of
sentence. The motion contended, inter alia, that the Court had
improperly denied Defendant the benefit of a plea bargain, that the
Court had failed to state its reasons on the record for the
sentence, and that the Court had "inappropriately injected itself
between matters best left to negotiations between the Commonwealth
and the defense.-22
A hearing on the motion was held on June 27, 1994. For the
purpose of placing its reasons for the sentence on the record, the
Court vacated the earlier sentence and reimposed it in the
following form:
AND NOW, this 27th day of June, 1994, upon
consideration of the Defendant's Motion for Modification
of Sentence, and following a scheduled hearing on the
said motion, and the Court having not previously
specifically put reasons on the record for its sentence,
the sentence of the Court imposed on June 2, 1994, is
vacated, and the following sentence is imposed in its
place:
Order of Court, June 2, 1994.
Defendant's Motion for Modification of Sentence, at 3.
9
413 Criminal 1993
The Defendant, David M. Kyler, now appearing for
sentence with the Chief Public Defender, Taylor P.
Andrews, Esquire, and having previously entered a plea of
guilty to Driving under the Influence, which is a fourth
offense for mandatory sentencing purposes, and Driving
under Suspension (DUI related), and the Court being in
receipt of a presentence investigation report upon which
it relies, and following a prior hearing at which the
Defendant declined the opportunity to withdraw his plea
of guilty because the guilty plea colloquy indicated that
the Driving under the Influence offense was a third
offense for mandatory sentencing purposes, the sentence
of the Court is as follows:
At Count A, Driving under the Influence, a fourth
offense for mandatory sentencing purposes, the Defendant
is sentenced to pay the costs of prosecution, a fine of
$300.00, a $10.00 Emergency Medical Services Fund
assessment, and a $300.00 CAT Fund assessment, and to
undergo imprisonment in a state correctional institution
for a period of not less than one year nor more than two
years. The Cumberland County Sheriff is directed not to
transport the Defendant to a state prison without further
Order of Court. Work release is authorized for the
Defendant while he is at the Cumberland County Prison.
Prior to obtaining his Pennsylvania operating privileges,
the Defendant shall pay all court-imposed costs and fines
and pay for and successfully complete an alcohol
treatment program.
At Count C, Driving Under Suspension (DUI related),
the Defendant is sentenced to pay the costs of
prosecution, a fine of $1,000.00, a $30.00 CAT Fund
assessment, and a $10.00 Emergency Medical Services Fund
assessment, and to undergo imprisonment in the Cumberland
County Prison for a period of ninety days, said sentence
to run consecutive to the sentence imposed at Count A.
Work release is authorized for the Defendant with respect
to this offense.
The reasons for this sentence are as follows.
First, the Court, as indicated above, is in receipt of a
presentence investigation report upon which it relies.
Second, both sentences are the mandatory minimum
sentences provided by law. Third, the sentences and
their consecutive nature are warranted because past
punishments have not had the desired effect of
deterrence, the offenses represent a serious threat to
10
413 criminal 1993
andatOry sentence for
se of a m ined if it were
- +he purpO ~n ne underm -- ~r Drivmn~
_~ safety, ~ __zion wouiu ~ .... entenc~ ~X _~
Drivmng_~urrent wmtn~11d the Deze~u~2 so affe°~
to run u~- ~_~luence, ~' ~ .~nwillin9 ~
under the ~s the court
recidivism
· case-
. ~ oartmCUlar =~rred on t~e
urpOse mn ~- ~ . _~ ~hall be u~_-~=1 will De
P . _ 's sentenc~_] hat an aPP~ ~% own
Servmc= _~ defense ~--~:-ued
rep=~-- ~he D
file~- ~"- Defendant has aPPealed to the
recognizance ms auth°rmzed'~
From this ~udgment of sentence
- -tters Complained of on APPeal'
.-- court- In a statement o~ Ma = ~ efault by the
mo~ . urt aPPr°vea ~ d
super =_ ~% that the Co _ 4~ e~al sentence
- =--dant asseru~ ~-' . ,2% that an ~1 _
Dez=~ . -~a bargamn, % ' . .._- + e aforeSa~
onwealth mn a F~ · -~ed in permmttmn9 ~h .
Comm - ~our% ~ - -
= (3) that the ~ rneY regarding
resulted, = ~ assistant district attO inappropriatelY into an
testimony oz ~ - . . itself
(4) that the Court mn]ected Defendant, and (5) that
ic , .S §9716 in
pol Y _ ~monwealth and the
agreement between tBe ~
the court failed to consider the provisions of 42 Pa. C -
imposing consecutive sentences'
~ sentencing case
sentencing' In a mandatory
court to sentence a
Mandatory
involving drunk driving, it is error for a
defendant to less than the mandatory minimum sentence because at
t's plea his or her prior record was
393,
the time of Defendan
incorrectly assessed' commonwealth v. AlstOn, 387 Pa. super-
564 A.2d 235 (1989)- On the other hand, in such a situation th~
~ June 27, 1994.
~ order of court,
11
&13 Criminal ~993 withdraw the plea.
oppOrtunit¥ to
Defendant should be afforded an t of evidence is a ~atte~
. ._=ibili ¥ :_~ court '''
IO- "~T]~e '-n of tn ~d 176,
Evidence' ' e sound d~scret~u _. ~03_0~, &95 A z
addressed to tn -ool, 508 pa. 19u, ..
lth v. claYP two axiomS: '
C°~°nwea ~idence rests uP°n :~e ~alue are
1985~' _..=tern of %e~ _ ~robat~ - e
~ .... ~odern ~' , _ rationa~ ~ obati~e
"TP~ __ but ~actS ha~n~+= ha~ing rational pr ,, % ~i~Ore'
a~issible
. . -.-~e forbids'
unless s°'e speCzf~c~[;A fact hav~ug
are aSZSSible' _+ ~89_93 [3d ed. --hlv tend[S] to P ....
Evzdence ~= ---e is one whzc~ --t relevant to ~ . at 71-72
_.obat[Ve vain . -ne or a Iau _-dbook ~&.l,
P~ e a fact zn zs= ' 1 Ev[dence Ba~ ~endS to estabiZ~
disprOV lvan[a Trza -nce which % a fact a~
enk[nS, ?ennSY __~iselY, "[e]vzde ._ tends to make tt
J stated cu~ -se, or whzcn __wealth v. Sco
(197~' ~ to the c~ t." C°~°~'
so~e fact mater~aZ _robable, zs teleran a~Peal after re~an~'va~
or less P ~ (1978%, ~ ?ennSYl
issue more -.ld 79, uz ~ ~ ?oulin,
~0 ?a. 50, 5~, 3~9~7 ~1981~ see ?acke~
?a. 188, ~36 A'Id ~ sectiOn 971(
-~nl (19~7~. _.. constructiOn'
d
~here _~nceS are .onulr
m~nz~=~g that s~
413 Criminal 1993
Act of March 8, 1982, P.L. 169, ~3, 42 Pa. C.S. ~9716.
"The object of all interpretation and construction of statutes
is to ascertain and effectuate the intention of the General
Assembly." Act of December 6, 1972, P.L. 1889, ~3, 1 Pa. C.S.
~1921(a) (1994 Supp.). "When the words of a statute are clear and
free from all ambiguity, the letter of it is not to be disregarded
under the pretext of pursuing its spirit." Id., ~1921(b).
"When the words of [a] statute are not explicit, the intention
of the General Assembly may be ascertained by considering, among
other matters[,] ... It]he mischief to be remedied ... [and t]he
object to be attained." Id., ~1921(c)(3), (4). "In ascertaining
the intention of the General Assembly in the enactment of a statute
· .. [it may be presumed t]hat the General Assembly does not intend
a result that is absurd ... or unreasonable." Id., ~1922(1).
Application of Law to Facts
In the present case, counsel incorrectly analyzed Defendant's
prior record in assuming at the time of his plea that the driving
under the influence charge was a third offense for mandatory
sentencing purposes. On the basis of the foregoing appellate
authority, it is believed that counsels' mistake in this regard did
not warrant the Court's imposition of a sentence inconsistent with
the law, but did create a right in Defendant to withdraw his plea.
By declining to exercise that right, Defendant subjected himself to
13
413 Criminal 1993
mandatory sentencing in accordance with a correct assessment of his
record.
Testimony as to the policy of the Cumberland County District
Attorney's Office against manipulation of mandatory sentences in
drunk driving cases for purposes of plea bargaining was of some
relevance to the question of whether such conduct had been engaged
in with respect to Defendant's case. Its admission does not seem
to the Court to have been an abuse of discretion.
Section 9716 of the Judicial Code, requiring the imposition of
a greater mandatory sentence over a lesser one where both pertain,
appears designed to assure that the more severe of two possible
mandatory sentences will be applied to a given crime. An
interpretation of the statute to preclude the imposition of
consecutive mandatory sentences for two distinct offenses would
involve a departure from the statute's language, a disregard of its
object, and an unreasonable result in terms of establishing a
benefit for the commission of offenses carrying mandatory
sentences. For these reasons, it is not believed that the Court's
sentence herein was inconsistent with Section 9716 of the Judicial
Code.
Jaime Keating, Esq.
Assistant District Attorney
Ron Turo, Esq.
Assistant Public Defender
:re
14